This post was originally published on Forbes Mar 17, 2015The decision by the US District Court for the Northern District of Indiana in the case of James Simon et. al. v Special Agent Paul Muschell et. al. brings back a tragic story. On November 6, 2007, IRS special agents, led by Paul Muschell searched the home of James and Denise Simon. Three days later, Denise committed suicide. She left several notes. The note to her husband read:
I want to know that I have always totally loved you. I know you are the most trustworthy person I have ever met. I wish I had strength to stay by your side and fight these terrible accusations, but I am not strong like you. I know you believe in the legal system, but I do not. If there is any afterlife, you can be sure I will be watching over you.
I love you from the bottom of my heart. I would have enjoyed growing old with you, but that is not to be my journey. Please take care of the children. They will need you.
James Simon filed a lawsuit about the raid in 2010.
As a result of defendant's investigation into the Simons and the subsequent search of the Simons' home, plaintiff filed the current suit against defendant, alleging intentional infliction of emotional distress, negligent infliction of emotional distress, negligence in obtaining the search warrant, negligence in executing the search warrant, trespass, invasion of privacy, and wrongful death.
Framing this story as the IRS acting with reckless abandon is complicated by one detail. James Simon ended up being found guilty of filing false income tax returns, failing to file reports of foreign bank accounts, mail fraud and financial aid fraud. He was sentenced to 6 years in prison and three years of supervised release. He currently resides at the Rochester Federal Medical Center with a projected release date of September 2, 2016. His appeal to the Seventh Circuit was turned down. The argument in the appeal was actually rather interesting.
The IRS apparently became interested in Mr. Simon because there was a discrepancy between his lifestyle and his reported income. From 2003 to 2006 his family apparently spent about $1.8 million and paid $328 in income tax. Mr. Simon explained that by indicating that he had been borrowing all that money from various foreign entities that he was involved in. One of the things that he was appealing was the trial court's dismissal of one of his back up arguments. That was that even if they treated money he took from partnerships as distributions instead of loans, he still would not be taxable, because the partnerships had borrowed the money which would increase his basis. That had me wondering, because that is the way it is. That's one of the main things that cause you to prefer partnerships.
The Seventh Circuit saw that part of the confusion was sorted out.
The government does not now disagree with the general proposition that a partner is taxed on distributions removed from a partnership only to the extent that the distributions exceed the partner’s adjustedbasis inthepartnership. 26U.S.C. §731(a). In reviewing the written and oral exchanges at trial surrounding this issue, it is apparent that the district court (against all odds, given the manner in which it was argued) also understood this general legal proposition but simply did not agree that the evidence Simon sought to introduce was relevant to demonstrating his adjusted basis in the partnership.
Jack Townsend provided quite a bit of coverage to the appeal. Besides the "loan issue" there was also a lot of discussion as to whether Simon was entitled to the regulatory relief that other taxpayers had received relative to FBAR non-compliance.
So in the wrongful death case, it would seem that it is tough to argue that the IRS had no reason to be looking into him.
The government was seeking to have itself dismissed as a defendant. The basis was an exception to the Federal Tort Claims Act for claims arising out of the collection or assessment of tax. (Remember the government has sovereign immunity, but FTCA allows it to be sued under certain circumstances) The discussion was pretty lawyerly.
In response, plaintiffs argue that § 2680(c) does not apply in this case because the investigation into plaintiffs' finances and the IRS agents' search of plaintiffs' home was “purely criminal in nature, and, on its face, devoid of intent or effort to ultimately assess or collect taxes from Mr. Simon.” Plaintiffs go on to argue that § 2680(c) does not apply in this case because the search of plaintiffs' home violated internal IRS policies, and therefore, was not for the purpose of assessing or collecting taxes. Finally, plaintiffs argue that the tort claims brought by R.S. and the Estate of Denise Simon do not arise from the collection or assessment of any taxes.
That argument didn't fly.
In this case, the court has no trouble concluding that § 2680(c) bars plaintiffs' claims. Although it is undisputed that the primary focus of defendant's investigation into plaintiffs was criminal in nature (DE # 49 at 2), several aspects of the IRS's investigation into plaintiffs' taxes reveal that the investigation and search of plaintiffs' home, which gave rise to plaintiffs' current claims, arose out of “the assessment or collection of” plaintiffs' taxes. 28 U.S.C. § 2680(c).
First, as plaintiffs' complaint and the affidavit in support of the search warrant issued for plaintiffs' home make clear, the search of plaintiffs' home and the investigation leading up to the search were conducted because the IRS believed that the Simons were evading taxes that plaintiffs owed to the United States government. .....
Furthermore, the investigation into plaintiffs' taxes, the search of plaintiffs' home, and the subsequent prosecution of plaintiff James Simon show that this entire process involved the assessment and collection of plaintiffs' taxes. As noted earlier, as a result of the investigation and search of plaintiffs' home, plaintiff James Simon was convicted of 19 federal offenses, ranging from filing a false federal income tax return to fraud involving federal financial aid. The sentence plaintiff James Simon received at trial was based, in part, on the amount of unpaid taxes that Simon owed to the IRS......
In sum, the court concludes that the investigation into plaintiffs' taxes and the search of plaintiffs' home arose out of “the assessment or collection of” the Simons' taxes. 28 U.S.C. § 2680(c).
As best as I could determine it was only the United States that was dismissed as a defendant, so there may be more on this case down the road.
There was quite a bit of coverage of this case when it was filed and some on Mr. Simon's conviction. This article by Rebecca Green goes pretty deeply into the background of James Simon, which is rather colorful. There was also a good bit of coverage when the case was filed with stories like this. As noted Jack Townsend covered the appeal of the criminal conviction. I have not been able to find any coverage of the most recent decision, even though I am late getting to it. I find that a little curious.